The OFCCP’s 2011 Regulatory Agenda

By: Charu Avasthy, PHR, and Cindy Karrow

 

On December 20, 2010, the Office of Federal Contract Compliance Programs (OFCCP) released its Fall 2010 Regulatory Agenda. The regulatory agenda is a listing of all the regulations the OFCCP expects to have under active consideration for some type of action in the next six-to-twelve month period.  The Director of the OFCCP, Patricia Shiu, says this semiannual publication reflects Secretary of Labor Hilda Solis’s commitment to ensuring workplaces are safe, secure, and equitable, and businesses comply with labor and employment laws. Shiu calls these efforts ‘Plan, Prevent and Protect.’ Below is a summary of the items listed as proposals for action:

 

Compensation Data Collection Tool—The OFCCP is considering the development of a new strategic compensation data collection tool. This tool would identify contractors who are likely to violate Executive Order 11246. The OFCCP also proposes the data collection tool may be used for establishment-specific, contractor-wide, or industry-wide analyses. Through publication of an Advance Notice of Proposed Rulemaking expected in February 2011, the OFCCP will seek input relating to the scope, content, and format of the tool.   

 

Evaluation of Recruitment and Placement Results under VEVRAA—This proposal would significantly change regulations pertaining to Veterans, requiring contractors and subcontractors to conduct a more in-depth analysis of recruitment and placement efforts. It would also set numerical targets for covered Veterans, and revise recordkeeping requirements. The Notice of Proposed Rulemaking is scheduled for January 2011 with the comment period ending in April 2011. 

 

Construction Contractor Affirmative Action Requirements—This proposal would change regulations to reflect the current state of the labor market and construction industry. The proposal aims to remove outdated requirements and propose a new method for goal setting for construction contractors. This Notice of Proposed Rulemaking is scheduled for July 2011. 

 

Evaluation of Recruitment and Placement Results under Section 503—This change would amend regulations to require increased linkages (described in more detail below), a more substantive analysis of recruitment and placement efforts, and would revise the recordkeeping requirements for individuals with disabilities. However, these changes are not currently expected to include numerical targets. The Notice of Proposed Rulemaking is scheduled for August 2011. 

 

In the past few months the OFCCP has focused its compliance review activities around the aforementioned issues. It is important to understand how the proposed changes will impact federal contractors.

 

In regards to compensation, in October 2010, the OFCCP sent a Notice to the Office of Management and Budget (OMB) to rescind its current Compensation Standards and Voluntary Guidelines. Now that the OMB has completed its review, publication of the rescission notice in the Federal Register is forthcoming. Berkshire projects some type of instrument or tool will be developed, and contractors will be required to submit compensation information outside of the compliance review process. Through its Advance Notice of Proposed Rulemaking, the OFCCP will seek input on the scope, content, and format of the tool. What is unclear is how they will analyze and use the data once it is collected.

 

As of right now, compliance review activities suggest several different methods are being used by regions until such guidance is provided. Current regulations do not require statistical analysis in the affirmative action plans for veterans; these plans contain descriptions of responsibilities, programs, and good faith efforts. The proposal for VEVRAA specifically states setting numerical targets to measure the results of affirmative action efforts. It is anticipated a change in the recordkeeping requirements may mean collecting and retaining more data from applicants or employees about their Veteran status.

 

The changes proposed under Section 503 seek to increase ‘linkages.’ This term is described in the OFCCP Federal Contract Compliance Manual as “efforts to facilitate and encourage working relationships between contractors and community recruitment.” Linkage agreements are usually required when a compliance review reveals insufficient representation of covered groups in the employee population or applicant records. 

 

Contractors and subcontractors are encouraged to review the proposals in detail at Fall 2010 Regulatory Agenda. For additional information, please contact your Berkshire representative.